A Legal Analysis of the Trial Of Jaime Lannister, Such That It Was
- Factual Background
At the end of Season 8, Episode 1, Zaddy Jaime Lannister arrives in Winterfell and is (presumably) immediately arrested and put on trial in the Great Hall at the start of Episode 2. First, Jaime is accused of Regicide by Queen Daenerys. Second, Jaime is accused of attacking Ned Stark (and killing Jory Cassel) on the streets of Kings Landing. See Game of Thrones, The Wolf and the Lion, S1E5. Jaime is not specifically asked to return a plea to either charge.
In response Jaime offers an admission to both crimes and a defense of himself which is no defense at all: He would do it all again. In the most fundamentally Jaime Lannister way possible, he refuses to apologize for A N Y T H I N G. Jaime asserts that he was justified in both actions because he was defending his House and his family and “We were at war.”
Then, unprompted (and in violation of the rules of evidence concerning relevance) Brienne rises and offers a defense of Jaime that she knows he is an honorable man. Sansa, trusting Brienne, and in consideration of the threat they face, agrees to pardon Jaime. Dany reluctantly agrees after Jon agrees with Sansa. The Trial of Jaime Lannister ends.
Jaime Lannister, as he almost always does, gets away with it.
- Wait… that was it!?!?
As immensely satisfying as this episode was it undoubtedly frustrated the purposes of the instant blog. Where was the rousing speech from Jaime Lannster arguing that his slaying was necessary to save millions of lives? Where was the discussion of the intersection of Jaime’s loyalty to his House and his father in conflict with his Kingsguard vows? Where was Tyrion pounding the table to object to a particular line of questioning? Where was the vigorous cross-examination of Varys as to what in the holy fuck he was doing during the Sack of King’s Landing?
We didn’t get any of that. A pity for me (and me alone). But… what if we had gotten the trial? How should it have gone?
The actual trial was truncated in part because Jaime does not deny guilt for either of the two crimes he is accused of, in fact he argues that those crimes were justified due to the circumstances. But were they ACTUALLY legally justified or is that cad Jaime Lannister a murderer?
- Standard Of Review
Jaime’s only assertion in the actual trial is justification. To his credit, he does not claim innocence.
Justification is what is known as an affirmative defense, which is a way for a defendant to essentially state that “even if everything you say is true, I still prevail for some reason”. Some common affirmative defenses are duress (i.e. yes it’s true that Arya was guilty of murdering the stableboy but she was under threat of death or capture from the Lannisters at the time), incapacity (i.e. yes it’s true that Sansa lied to Robb about Ned having committed treason but she was a child you fucking monsters), or insanity (i.e. yes it’s true that Catelyn murdered Jinglebell at the Twins but she was not of sane mind at the time). It’s a legal way of saying “yeah… BUT”
Jaime offers the affirmative defense that both of the crimes he is accused of in his trial were justified because he was defending his house and his family and they were at war. The interesting thing about this plea is that the particular justification Jaime offers does not actually absolve Jaime of either alleged crime.
Justifiable homicide is defined nicely in many places but we will turn to the particular provisions of California Penal Code § 197: Justifiable homicide by other persons, which states that homicide is justifiable in any of the following cases:
When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,
When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,
When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
Here, Jaime was accused of two crimes: Regicide of Aerys II, and killing Jory Cassel. The justification he offers for both is the war between his house and the victim.
- Jaime was justified in killing Aerys, but not for the reason he claims.
The text makes fairly clear that Jaime’s asserted justification (that his House was at war with the Targaryens) is insufficent.
“How can you still count yourself a knight, when you have forsaken every vow you ever swore?”
Jaime reached for the flagon to refill his cup. “So many vows . . . they make you swear and swear. Defend the king. Obey the king. Keep his secrets. Do his bidding. Your life for his. But obey your father. Love your sister. Protect the innocent. Defend the weak. Respect the gods. Obey the laws. It’s too much. No matter what you do, you’re forsaking one vow or the other.”- A Clash Of Kings, Catelyn VII
“The knights of the Kingsguard are forbidden to marry, to father children, and to hold land, you know that as well as I. The day Jaime put on that white cloak, he gave up his claim to Casterly Rock, but never once have you acknowledged it. It’s past time. I want you to stand up before the realm and proclaim that I am your son and your lawful heir.”- A Storm Of Swords, Tyrion I
These two quotes, taken together lead one to the following conclusions about Kingsguard vows: First, that as Jaime himself admits, his oaths to protect and obey the king come before his oath to “obey his father”. Second, that even to the extent that he had some duty to obey Tywin, he gave up any familial ties when he took the white cloak. Thus, while it’s true that House Lannister was at war with the Crown, at the time Jaime slew Aerys, he was not legally aligned with House Lannister. He was aligned with the Crown. Thus, he could not have been at war with House Targaryen and his asserted justification falls flat.
However, Jaime was justified in killing Aerys by the simple application of the principle contained in Cal. Pen. Code § 197(3) above. Jaime needed to kill Aerys to defend the million people of King’s Landing against imminent death by Aerys’ hand.
While this defense was not made in Jaime’s actual trial, it is my contention that Jaime’s killing of Aerys was legally justified. The fact that Aerys was sovereign does not change that justification. This is because at the time Aerys ordered his Hand to burn the people of King’s Landing, the people (including Jaime) had earned the unquestioned right to revolution.
As natural rights philosopher John Locke wrote in his 1689 Second Treatise on Civil Government, the right to revolution attaches:
“whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of Society; and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty.” (sec. 222)
You may also be familiar with this concept from its more famous iteration:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…” Declaration of Independence, 1776.
Locke was right. Jefferson was (for once) right. When a monarch stops protecting the natural rights of his subjects the social contract between the two is breached and the people have the right to revolution. Thus, Jaime was indeed justified in killing and revolting against Aerys, but not for the reason he asserted at trial.
- Jaime Likely had Another Affirmative Defense Related to Aerys’ Killing: Double Jeopardy.
The prohibition against double jeopardy, or being tried twice for the same crime, is enshrined in the Fifth Amendment to the US Constitution. It states “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” U.S. Constitution, Am. V.
Here, Jaime was pardoned by King Robert for murdering Aerys. Thus being put on trial by Daenerys for the same crime would run afoul of this modern criminal protection. Of course, even if there was such a protection in Westeros, Daenerys would argue that Robert’s sovereignty was illegitimate and thus so was his pardon. I will address the essential nature of Westerosi sovereignty in a future essay, but suffice it to say Jaime would not have gotten far with the protection against double jeopardy as his only defense. Nevertheless it warrants mentioning that it was worth a try.
- Jaime was Not Justified In Killing Jory Cassel
No such justification exists for the attack on Ned Stark or killing Jory Cassel. Let’s go to the tape.
Viewing the events outside the brothel and applying the standard of justifiable homicide above make it clear that this killing was straight up murder. First, neither Ned nor Jory were endeavoring to commit a felony, to murder someone, or to commit bodily harm on anyone when they were attacked on the street by Jaime and his men. Second, to the extent that Jaime was attempting to defend his brother, it should be noted that it was not Ned who abducted Tyrion, it was his wife, so attacking Ned did not have the effect of saving anyone. Third, Jaime had other remedies to secure the release of Tyrion other than physical violence, such as an appeal to the sovereign. Fourth, and most tellingly, even if active war were a justification for this attack (and there’s no evidence that it was), at the time of the attack neither House Lannister nor House Stark had called the banners. In other words, war was not active, and Jaime’s own logic is flawed.
Put simply, there is no justification here and Jaime would escape conviction on this count solely because of a pardon by Queen Daenerys (and/or Lady Sansa depending on what ultimately happens with Northern sovereignty).
- Pardon Me, Are You Jaime Lannister, Sir?
The executive power to pardon traces back to the sovereign right of kings and was practiced in Britain, France, and most other monarchies. It has largely survived in modern states largely because (as shown in this very instance) the pardon power when used correctly is often an extremely practical way to govern when legal principles conflict with practical realities.
In Federalist 74, Alexander Hamilton extolled the value of a pardoning power: “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed [sic] offer of pardon to the insurgents or rebels may restore the tranquillity [sic] of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall”
Here, Queen Daenerys offered a “welltimed” offer of pardon to the insurgent rebel Jaime Lannister in an attempt to retain the tranquility of her commonwealth. Realistically, it bought him another day. We’ll see soon if it bought Jaime (or the Realm) much else.
It was no surprise that Jaime Lannister got off. Getting off is, after all, what Jaime Lannister does. But it is unlikely that a fulsome and fair trial for his accused crimes would have come to a different result. Jaime was legally and morally justified in killing Aerys. While he was not justified in killing Jory Cassel, the practicalities of the situation dictate that a pardon was necessary in order to bolster their chances against the dead.